Supremes Send Palm Beach Judicial Vacancy To Voters

The Honorable Laura Johnson is getting a promotion—moving up to the circuit court in Palm Beach county. But the question of who gets to fill her old seat on the county court bench has been the subject of dispute in the state Supreme Court. Late Friday the justices decided the voters will choose the replacement.

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The qualifying period to run for judicial posts was open noon May second until the sixth. At the close of that period in Palm Beach County, Judge Laura Johnson was the only circuit court candidate, so she’ll take up the post early next year without appearing on the ballot.

But before she could put her name in the hat she had to abandon her existing seat.

“It’s called ‘resign to run’ and that law has been enacted since about 1970,” Palm Beach County Supervisor of Elections Susan Bucher explains.

“So Judge Johnson was a county judge, in [a] group eleven seat in Palm Beach County and she desired to run for circuit court—the next higher court—and she brought in a letter of resignation within the statutory deadline which is ten days before the qualifying,” she says.

University of Florida law professor Timothy McLendon explains Johnson had to give up the seat because of Florida’s resign to run law.

“To commit to run to a different office you must resign the office that you currently hold, that is the principle behind it,” McLendon says.

The governor and secretary of state argue Johnson’s resignation triggers the governor’s appointment powers. They say it creates a vacancy, because her announcement came before the qualifying period to fill her seat with an election.

“But that defies, quite honestly, logic and common sense to limit it to that time,” Palm Beach County attorney—and judicial hopeful—Gregg Lerman says.

Bucher explains Lerman and fellow attorney Thomas Baker filed paperwork to run for Johnson’s empty seat shortly after her resignation.

“So based on all of the legal background we did accept two candidates’ qualifying papers,” Bucher says, “and they have since filed a lawsuit with the Florida Supreme Court that’s being considered right now.”

And this isn’t the first time resign to run has prompted tricky questions— in the past forty years, state officials have turned to Florida’s Division of Elections well over a hundred times for advisory opinions about the law’s application. Lerman argues the courts have already held resignations coming once the electoral process begins should be filled by election.

So the question here is when does that process begin? Is it the start of qualifying as the governor argues, or in the case of a resign to run vacancy, does it begin with the advance notice?

“You have to resign ten days before—not less—but ten days or more before the qualifying period in order to run,” Lerman argues, “so the electoral process really begins for a particular seat when that individual, be it a judge or a deputy or some other elected office, when that individual resigns from that office for that particular seat.”

“I think it is a difficult question,” McLendon says, “I think it is a valid ambiguity.”

“I think there might be a minor or a slight preference for preserving the elective process where it can fit within the time period,” he goes on, “but that of course is what makes the decision on this and the quick resolution of it all the more imperative.”

The governor had agreed to delay his appointment decision as long as legally possible to give the court time to consider the case.

Late Friday it did.

Palm Beach County voters will determine who fills Judge Johnson’s old seat.